Neelson v. Sanborne

Richardson, C. J.

The statute of Feb. 10, 1791, sec. 1, (l) enacts, “ that no action shall lie brought, whereby to “ charge any executor or administrator upon any special “promise to answer damages out of his own estate; or “ whereby to charge the defendant upon any special pro- “ mise to answer for the debt, default or miscarriage of anoth- “ er person, or to charge any person upon an agreement made “ upon consideration of marriage, or upon any agreement “ that is not to be performed within the space of one year “ from the time of making it, unless such promise or agree- “ ment, or some memorandum or note thereof be in writing, “ and signed by the party to be charged therewith,” &c.

It is well settled, that no action can be maintained upon a promise, in a case where a statute requires the agreement to be in writing, unless the consideration of the promise is, as well as the promise itself, in writing. Phillips'’ Ev. 440.— Sugden’s Law of Vendors 43, note. —5 East. 10, Wain vs. Warlters. —3 Johnson 210, Sears vs. Brink. — 6 East 307, Egerton vs. Mathews.—5 Cranch 15 1.

It is contended, that these decisions are founded upon the particular import of the word “ agreement,” and that a different rule is to be adopted when “ a promise” is required by statute to be in writing, and there are unquestionably dicta and decisions in the books which countenance this distinction. But the language of our statute is “ unless such promise or agreement, ice. be in writing,” the word such referring particularly to the promises and agreements before enumerated. So that if the distinction for which the plaintiff’s counsel contends, be adopted here, we must hold that in cases of promises by executors and administrators to answer damages out of their own estate, and of promises to answer for the debt, default, or miscarriage of another person, it will be sufficient if the promise only be in writing : but in cases of agreements made in consideration of mar- *415 piage, and of agreements not to be performed in a year, not only the promise, but the consideration must be in writing.

(1) 1 Campbell 242'

It is, however, unnecessary in this case to settle the question, whether the legislature intended to make this distinction, because we are satisfied that a sufficient consideration is necessarily implied from the terms of this contract. The defendant guaranteed the payment of the note, one half in six, and the other half in twelve months. This we consider, in effect, a promise to see the debt paid in six and twelve months, if the plaintiff should so long forbear to collect it of the original debtors, and without such forbearance it is clear, this defendant could never have been liable. It is not necessary that the plaintiff should have agreed to forbear -, it is enough that he did actually forbear. In the case of Stapp vs. Lill,( 1) which was assumpsit upon a written agreement, in the following words: “ I guarantee the “ payment of any goods which Mr. John Stapp shall deliv- “ er to Mr. Nichols, of Brick-lane,” the court held that though by the agreement the plaintiff was not obliged to deliver the goods, there appeared a sufficient consideration for the defendant’s promise to be answerable if any should be delivered. 9 East 348, S. C.—8 Johnson, 29, Leonard vs. Vridenburgh. —12 Mass. Rep. 139.-4 Johnson 237.-Cro.Eliz. 387, May vs. Alvares.

There is no doubt that forbearance is a sufficient consideration, and as in this case such a consideration is necessa- = rily implied from the terms of the contract, we are of opinion that the case is not within the statute of frauds, and that there must be A new trial granted.